Boston Medical Center decision
NATIONAL LABOR RELATIONS BOARD (N.L.R.B.)
**1 *152 BOSTON MEDICAL CENTER CORPORATION
AND
HOUSE OFFICERS' ASSOCIATION/COMMITTEE OF INTERNS AND RESIDENTS, PETITIONER
Case 1-RC-20574
November 26, 1999
DECISION ON REVIEW AND DIRECTION OF ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS FOX, LIEBMAN, HURTGEN, AND BRAME
On October 17, 1997, the Regional Director for Region 1 issued a Decision and Order dismissing a petition seeking certification of a unit of interns, residents, and fellows (house officers or house staff) because the house officers are not employees within the meaning of Section 2(3) of the Act. The Regional Director relied on Cedars-Sinai Medical Center [FN1] and St. Clare's Hospital & Health Center, [FN2] which held that medical interns, residents, and fellows are primarily students and, therefore, not "employees" within the meaning of Section 2(3) of the Act. The Regional Director also found that the Petitioner, inasmuch as it does not admit individuals into membership other than house officers, is not a labor organization within the meaning of Section 2(5) of the Act.
Pursuant to Section 102.67 of the National Labor Relations Board's Rules and Regulations, the Petitioner and the Employer each filed a timely request for review of the Regional Director's decision. By Order dated December 8, 1997, the Board granted those requests for review as they raised substantial issues warranting review. [FN3]
The Petitioner, mindful of the Cedars-Sinai and St. Clare's Hospital precedent, requests that the Board overrule that precedent. Boston Medical Center (BMC or the Employer) asserts, inter alia, that the Board should adhere to that precedent, that, under Cedars-Sinai and St. Clare's Hospital, the Petitioner is not a labor organization because it is not an organization in which "employees" participate, and that the unit is inappropriate because the individuals sought are primarily students rather than "employees."
Having carefully reviewed the entire record in this proceeding, including the briefs of the Employer and the Petitioner and the briefs of the various amici curiae, [FN4] with respect to the issues under review, the Board has decided to overrule Cedars-Sinai, St. Clare's Hospital, and other decisions following those cases, and to find that the interns, residents, and fellows employed by BMC, while they may be students learning their chosen medical craft, are also "employees" within the meaning of Section 2(3) of the Act.
I. THE FACTS
The Regional Director fully set forth the salient facts in her Decision and Order (pertinent portions of which we have attached as an Appendix). We will not attempt to repeat all of those facts but will highlight those necessary for a cogent understanding of our decision.
**2 BMC operates a 432-bed, nonprofit, acute-care teaching hospital in Boston, Massachusetts. It provides both inpatient and outpatient services, maintains a 24-hour emergency care facility, and serves as the primary teaching facility for the Boston University School of Medicine. As such, BMC sponsors some 37 different residency programs varying in length from 3 to 5 years, with some lasting longer. [FN5] Fellowships last from 1 to 4 additional years. There are about 430 house officers in the unit sought by the Petitioner.
BMC came into existence on July 1, 1996, as a result of the consolidation of Boston City Hospital (BCH) and Boston University Medical Center Hospital (known as University Hospital). BCH was a department of the City of Boston and a public hospital. BCH and University Hospital were located a block apart, with the Boston University School of Medicine situated between them. Both were affiliated with the Boston University School of Medicine, and some of their residency programs were integrated prior to the merger.
As a public sector hospital, BCH was subject to the Massachusetts public employee collective-bargaining law, under which the house staff had the right to organize. Accordingly, the Petitioner had represented a unit of interns, residents, and fellows at BCH since 1969 and had negotiated approximately ten successive collective-bargaining agreements with BCH since 1970. As a condition of the 1996 merger between BCH and University Hospital, the Boston City Council required that BMC *153 recognize the Petitioner as the collective-bargaining representative of the 280 former BCH house staff. BMC signed a recognition agreement in which it further agreed to a representation election among all house officers at the merged entity. Ultimately, on August 29, 1996, the parties held a "card count," and based on the outcome of that count, the Petitioner became the representative of the house staff at BMC. In January 1997, the parties executed a revised version of the collective-bargaining agreement that had been in effect between the Petitioner and BCH prior to the merger, with effective dates from July 1, 1994, through June 30, 1997.
BMC's residency programs are funded, at least in part, through direct and indirect medical education payments from Medicare, with those payments being based on the historic costs of the medical center using a formula that incorporates the number of interns and residents enrolled in the medical residency programs at BMC. BMC, like all institutions sponsoring medical residency programs, begins its academic year on July 1 of each year. Students halfway through their fourth year of medical school decide what area of medicine they would like to pursue and apply to appropriate medical programs. Out of hundreds or thousands of applications received, a small percentage of applicants are picked to interview for particular residency programs at BMC. Thereafter, BMC, like other teaching hospitals, ranks the individual applicants and submits its top candidates to a national matching program. At about the same time, applicants submit a list of residency programs that they would like to attend. In March, the national matching program generates a "match" list that sets forth which applicants will attend which residency programs. There is no matching process for fellowships. Applicants for fellowships are hired directly by the teaching hospitals.
**3 House officers enter a residency or fellowship program in order to become certified specialists in their chosen medical specialty. To become an intern, an individual must have graduated from medical school and passed Parts 1 and 2 of the U.S. medical licensing exam. The appropriate state board of registration in medicine then issues interns a temporary license, which permits them to practice only under the aegis of their particular residency program. The state boards require that in order for medical school graduates to practice as fully licensed physicians, they must successfully complete the 1-year internship and then pass part 3 of the U.S. medical licensing exam. This then allows them to practice outside their residency program, as well.
Residents who successfully complete their program receive a diploma from the Boston University School of Medicine. On approval by the specialty board that certifies physicians in their field, they are then considered to be "Board- eligible," i.e., they have successfully completed their training and are eligible to sit for an exam in their chosen specialty. After passing a written exam, these doctors can then hold themselves out as being "Board-certified" in their field. While it is not necessary for a doctor to be certified in a specialty to practice medicine, some medical institutions and practices are beginning to require certification. Accordingly, a physician's failure to be certified in a specialty may limit the employment opportunities of that physician. Most residents and fellows leave BMC upon the completion of their residency or fellowship program to pursue opportunities elsewhere. Only a small percentage remains to join the faculty.
House officers are assigned throughout the year to various rotations, usually about 4 to 6 weeks in length, which expose them to various types of patients in their chosen specialty. In some programs the residents perform one or more rotations at other institutions with which BMC has affiliation agreements. House officers work notoriously long hours, which vary depending on the specialty and the rotation. They are trained by and work under the medical direction of attending physicians who are referred to as "attendings" or faculty. When house officers are on rotations at other institutions, they are supervised by attending physicians from those institutions. Attendings are physicians on the staff of BMC, 99 percent of whom are also faculty members of the Boston University School of Medicine. The attendings are technically employed by the Faculty Practice Plan Foundation, Inc., which is an umbrella corporation for the various subsidiary practice plans in place for each department within the hospital. BMC and the School of Medicine are both members of the corporation, and attendings receive support from both the Faculty Practice Plan and the School of Medicine. They receive their paychecks from the School of Medicine, which hires them and acts as the common paymaster for the two entities.
**4 Residency programs have essentially two elements: didactic lectures and clinical training. Medical residents attend didactic lectures on a variety of topics relevant to their particular residency program. In addition, residents gain experience in performing direct patient care by working in teams that include third- and fourth-year medical students, interns, junior and senior residents, and attending physicians. Each intern on an inpatient ward is generally assigned 12 to 15 patients. A more senior resident is responsible for overseeing the work of the interns, and the interns oversee the medical students. An attending physician must be the physician of record for every patient.
Interns start the day early in the morning by checking in with the "night float," i.e., the intern who has been on duty overnight, to learn of any developments during the night. Then they "pre-round" or check their patients on their own. From 7:30 to 9:30 a.m., the team of medical students, two to three interns, a more senior resident, and, occasionally, an attending physician do "work *154 rounds" in which they check on and discuss the status of each patient at the patient's bedside. Following that, the interns order X-rays, consults, and treatments. They start intravenous lines (IVs) and perform procedures such as arterial blood gases, which involve drawing blood, and thorancentesis, paracentesis, and lumbar punctures, which involve removing fluids. Attending physicians are rarely present when interns perform these procedures. Interns also perform critical patient-care procedures, such as intubating patients who cannot breathe for themselves. Residents, including interns, respond to "codes," i.e., life-threatening emergencies, without attending physicians. Interns are the primary physicians with whom patients' families have contact. Interns write "do not resuscitate" (DNR) orders for terminally ill patients at the request of patients and/or their families. Such orders must, however, be cosigned by an attending physician within 24 hours.
As noted by the Regional Director, interns are also responsible for hospital admissions, [FN6] which usually begin with a call from a physician from the emergency room or the clinic. When the patient arrives, interns take a history, perform a physical, draw blood, start an IV, initiate any necessary immediate treatments, and write admission orders, including any medication orders. The junior resident also does a more focused history and physical examination of the patient. The intern and junior resident consult with the senior resident on duty, and, together, they decide what tests or treatments should be performed. Interns are also responsible for writing daily progress notes on all their patients. On approval of an attending, they discharge patients, which involves writing a discharge summary and instructions, filling out prescription orders, and instructing the patient and/or caregivers about any necessary care after the hospitalization.
**5 As residents progress through the program, they are given increased responsibility commensurate with their level of experience. For example, internal medicine interns see patients 80 to 90 percent of the time outside the presence of an attending physician. Interns do, however, discuss all patients with attending physicians, who are primarily responsible for their patients' care plans and who see their patients daily. In the emergency room or urgent care clinic, the interns consult with an attending physician after examining each patient. The intern on "night float" operates more independently, as there is not likely to be an attending physician on the inpatient wards overnight. Two residents and two interns take care of the entire ward at night, when there are no attendings on duty except in the emergency room.
A third-year pediatric resident testified that she makes 80 percent of patient-care decisions on her own [FN7] and consults with an attending the balance of the time over decisions such as whether to transfer a patient to the intensive care unit. She further testified that she has helped families make life or death decisions about the level of intervention to be used in the case of critically ill infants and children. The pediatric residents are the only physicians present on the pediatric wards for a 12-hour period at night, although there is always a chief resident and an attending on call at home. The pediatric resident testified that she does not frequently call an attending at night, perhaps twice a month.
Fellows in the cardiology program may perform certain noninvasive procedures on their own, but more risky procedures must be done in the presence of an attending physician. In an emergency situation, cardiology fellows may perform such procedures as CPR, defibrillation, and transthoracic echocardiograms without an attending physician being present, but those matters must be reviewed with an attending as soon as possible thereafter. Residents in the radiology program draft a preliminary report for each film, but an attending physician must sign off on every final report. A radiology resident is on duty in the emergency room 24 hours per day. After 9 p.m., when there are no attending physicians in radiology present, radiology residents interpret films alone, and an attending signs off on them the following day.
Residents in the pathology program make a preliminary diagnosis with respect to each slide of tissue that they examine and discuss each diagnosis with a faculty physician. In those cases where a pathologist is required to make a diagnosis while a patient is undergoing surgery, *155 pathology residents are not permitted to give a diagnosis to the surgeons without prior review by faculty. Pathology residents must present each autopsy report to an attending, who is legally responsible for the report.
Residents in the various surgical residency programs spend 8 to 10 hours a day in the operating room on those days that they perform surgery. They are permitted to perform increasingly more complicated surgery as their experience increases. An attending physician must be "scrubbed in" for the significant or critical portion of each operation. A chief orthopedic resident testified that in the case of a knee arthroscopy, one of the most common procedures performed by orthopedic surgeons, the entire procedure takes about 2 hours, out of which time an attending would be present for 30 minutes to an hour. This same resident testified that she does complicated procedures in the emergency room on her own, such as fracture manipulations or immobilizing a pelvic fracture. [FN8]
**6 In addition to their time spent in direct patient care, house staff also attend so-called "didactic" conferences. In some residencies, such conferences take place at noon and cover various topics. Residents spend varying amounts of time in conferences, ranging in some estimates from 5 to 8 hours per week. House staff also engage in rounds, a 1-hour "morning report" conference (6 days a week), clinic talks, and the like. [FN9]
Residents in each program are required to take an annual "in-training" exam offered by their specialty board, which is used to make comparisons with other programs throughout the country, to identify the residents' academic strengths and weaknesses, and to indicate the likelihood that they will pass the Boards. The Program Director for the general surgical residency program testified that those residents who score below the 25th percentile on the in-training exam are put on academic probation. Those who fall below that level for a second year could be held back a year in the program. However, according to a 1995 memorandum put into evidence by the Employer regarding the internal medicine in-training exam at BCH, the examination is not used to make decisions concerning acceptance, continuation, or advancement in residency or fellowship training positions. In addition to the in-training exam, residents in the surgery residency program take weekly or biweekly exams and are constantly quizzed by attendings using the Socratic method. In the otolaryngology program, residents take a written exam at the end of each lecture series on a given topic, every 2 to 3 months. In the pediatric program, residents are required to take a Pediatric Advanced Life Support (PALS) and a Neonatal Advanced Life Support (NALS) course, each of which culminate in a written exam.
Moreover, at the end of each rotation, the faculty member who has worked most closely with each resident fills out an evaluation form which rates him or her with respect to various factors, including medical knowledge, technical skills, clinical judgment, and humanistic qualities. (At the same time, the residents submit an evaluation form in which they rate the attendings and their educational experience during the rotation.) In the case of residents who fail to meet the programs' standards for medical knowledge or clinical competence, department chairpersons and/or program director may put them on probation, require them to fulfill additional time in training prior to advancing to the next level, terminate them from the residency program, decline to renew their contract, or decline to give them the certification of satisfactory performance needed to sit for the Board exam. These steps have, in fact, been taken with some residents.
*156 After their internship year, when they have a full or permanent physician license, some residents "moonlight," i.e., work part-time as doctors elsewhere to make extra money. (Interns cannot moonlight because, as noted above, their limited license permits them to practice only within the residency program.) The Regional Director noted that two residents testified that they perform the same work when they moonlight at local clinics and a local community hospital as they do at BMC, without having to attend ward rounds, grand rounds, or conferences. She also noted that they are paid much more for their moonlighting work than for their work at BMC, but that they remain at BMC because they want the training necessary to become Board-certified in their respective specialties. [FN10] Also in regard to "moonlighting," the chief orthopedics resident testified that she occasionally serves as the orthopedic doctor on duty at Boston University home basketball games, for which service she receives $125 per game directly from the University.
**7 Physicians continue their medical education throughout their lifetime by reading medical journals, taking courses, and attending rounds, conferences, and scientific meetings in their field. Massachusetts requires physicians to have 100 hours of continuing medical education over a 2-year period in order to maintain their state licensure, and most have more.
Unlike other BMC employees, house officers are not recruited, interviewed, or hired by BMC's human resources department. They receive, however, annual compensation ranging from about $34,000 to over $44,000, depending on the number of years in the residency program. They also receive paid vacation and sick, parental, and bereavement leave. Like other BMC employees, house officers are entitled to health, dental, and life insurance, and they may use the employee health service. BMC also provides malpractice insurance at its expense for its house staff.
BMC deducts Federal and state taxes from house officers' pay. House staff receive W-2 forms for income tax purposes. BMC also maintains a workers compensation policy that applies to all employees, including house staff, and treats house staff as covered by the various state and Federal laws that regulate employment, such as the Family and Medical Leave Act, the Americans with Disabilities Act, and other state and Federal laws that prohibit various forms of discrimination in employment.
There are, however, some differences in the treatment of house officers as compared to other BMC physicians and/or employees in general. House officers are much lower paid than attending physicians, and their compensation is generally unrelated to the number of hours they work. House officers cannot participate in the retirement program, which is made available to other employees, although about 24 of them participate in a tax-sheltered annuity. The group malpractice insurance policy maintained by BMC for its house staff is separate from the individual policies provided for the faculty and paid for by their department practice plans. Other benefits available to other BMC employees but not to house officers include vision care, disability insurance, health care and dependent care reimbursement accounts, extended sick leave, and earned time. Unlike other BMC employees, residents are allowed to defer payments of some of their Federal and bank loans for medical school during a portion of their residency because they are still considered to be training for a job.
II. POSITIONS OF THE PARTIES
The Petitioner contends that there are compelling reasons for the Board to reconsider its determination in Cedars-Sinai and St. Clare's Hospital that interns, residents, and fellows are not employees within the meaning of Section 2(3) of the Act. The Petitioner argues that a substantial question of law is raised by the conflict between the Board's current position and the interpretations of Section 2(3) by the Supreme Court in several cases since the Board decided Cedars-Sinai and St. Clare's Hospital. It contends that the national policies of promoting peaceful collective bargaining and effective graduate medical training programs are best effectuated by recognizing that residents are employees entitled to the protections of and regulation by the Act. It further argues that the Board's unfounded speculation in Cedars- Sinai and St. Clare's Hospital regarding the alleged subjective intent of residents in pursuing graduate medical training is inappropriate and erroneous. In this regard, it points out that residents do inquire and are informed about the terms and conditions of their employment, and that if residents were unconcerned about the terms and conditions of their employment, they would not support unionization. Moreover, the Petitioner argues that the Supreme Court has rejected an analysis of employee status based on subjective intent.
**8 The Petitioner further asserts that the legislative history of the 1974 Health Care Amendments [FN11] supports the conclusion that residents are employees under the Act, and that the Board should also consider that the prevailing weight of opinion in public sector jurisdictions is that residents are employees. The Petitioner also argues that the Board must acknowledge that other Federal agencies *157 have rejected the premise of Cedars-Sinai that house staff are students.
The Petitioner contends that a unit of house staff--interns, residents, and fellows--is an appropriate unit for bargaining. Lastly, it contends, contrary to the position taken by the Employer, that the chief residents are neither supervisory nor managerial, and should be included in the bargaining unit.
The Employer contends that Cedars-Sinai is controlling and that it should not be overruled. It asserts that interns, residents, and fellows are primarily students and not employees and, accordingly, the Petitioner is not a labor organization as defined in the Act since it is not an organization in which employees participate. It further argues that the Board should not extend coverage of the Act to residents because graduate medical education is not compatible with the economic relationship contemplated by the Act. In this regard, it contends that the academic pursuit that characterizes the training hospital setting prevents the parties from actualizing the goals of an economic relationship; that the student/teacher relationship that exists in graduate medical education programs is not compatible with Congress' desire for equality of bargaining power between employees and employers; and that the process of graduate medical education is not suited to the collective treatment of residents. Finally, the Employer asserts that collective bargaining will undermine both the educational process and academic freedom. [FN12]
The Employer further argues that extending coverage of the Act to an academic relationship conflicts with the overall statutory scheme of the Act. Thus, it contends that the academic nature of the relationship between residents and BMC does not allow for equal participation by a labor organization in determining standards for evaluation, promotion, and discipline and dismissal; and that extending coverage of the Act to academic relationships will result in inevitable violations of Section 8(a)(2) of the Act because the Employer is compelled under applicable academic standards to organize committees, in which house staff participate, that have an effect on traditional collective- bargaining issues.
The Employer also contends that the Board's determination that residents are not employees gained legislative support when a proposed amendment to include residents within the definition of employee was defeated in Congress. It argues that the Supreme Court precedent relied on by the Petitioner is inapposite here. It contends that residents are not "employees" within the meaning of the Act because they are primarily engaged in graduate educational training. It also points to certain ways that residents at BMC are treated differently from hospital employees and contends that this supports its contention that residents are students rather than employees.
**9 The Employer also argues that numerous administrative problems will arise if the Board exercises jurisdiction over the primarily educational relationship between BMC and its residents because of the diversity, number, and complexity of its joint programs with other hospitals, including some public hospitals, and because of the transient status of residents.
The Employer further contends that assuming, arguendo, its house officers are employees, the petition must be dismissed because the petitioned-for unit directly contravenes the Board's Rule on collective-bargaining units in the health care industry [FN13] and is therefore inappropriate. It also asserts that the petition must be dismissed because the unit sought is inappropriate as it is based solely upon the Petitioner's extent of organization, and that, despite its petition, the Petitioner seeks to represent certain residents who are not even on the payroll of BMC. Lastly, the Employer argues that if the Board finds that residents are employees, then its chief residents should be excluded from the proposed bargaining unit because they are Section 2(11) supervisors and managerial employees.
In addition, amici took the following positions:
The AFL-CIO and the American Nurses Association argue, in support of the Petitioner, that BMC's house staff are employees as defined in the Act, especially given that the term "employee" must be broadly construed. They urge that the Board "reverse" its decisions in Cedars-Sinai and St. Clare's Hospital and hold that house staff are employees under the Act.
The American Medical Students Association urges, in support of the Petitioner, that the Board overturn Cedars-Sinai and hold that house staff are employees under Section 2(3) of the Act. It contests as factually contrary to the experience of the membership of its organization, the Employer's argument that the relationship between the house staff and the Hospital is similar to the academic relationship between medical students and the Hospital. The most significant distinction between medical students and house staff, it argues, is the ability of the latter to write medical orders, which are essentially the mechanism used to implement patient care. Lastly, it argues that the adequacy of salary, benefits, and working conditions offered by a residency program is an important part of the relationship between a resident and the hospital and that, without the ability to bargain collectively, house staff will have no protection against unilaterally imposed *158 increases in work hours and/or reduction in their salaries and benefits.
The University of Michigan House Officers Association, arguing in support of the Petitioner, points out that, as an organized association of self-governing resident physicians, it has collectively bargained on behalf of residents at the University of Michigan Hospital since about 1973, successfully negotiating 16 consecutive collective-bargaining agreements with the University of Michigan Hospital. It argues that its 25-year successful bargaining history should dispel the Board's speculation in St. Clare's Hospital that collective bargaining might "prove detrimental to both labor and educational policies." It further argues that its experience proves the fear, expressed in St. Clare's Hospital, that collective bargaining might "unduly infringe upon traditional academic freedoms" of a hospital's residency program is unfounded.
**10 The Medical Society of the State of New York argues, in support of the Petitioner, that the issue concerning the status of house officers should not be addressed as an "either-or" question, and that the fact that house officers may be students should not preclude them from also possessing the status of employees under the Act. It also states that it supports the longstanding policy of the American Medical Association that house officers should be able to organize in any manner they choose regarding negotiations with the institution sponsoring the residency program. It is, however, opposed to permitting the use of strikes where patient care is withheld for the purpose of gaining leverage in collective bargaining, although it believes that affording house officers NLRA protection will reduce the likelihood of strikes.
The Ad Hoc Committee for House Staff Rights at University Hospital, Inc. and the Ad Hoc Committee for House Staff Rights at Prince George's Hospital Center, in support of the Petitioner, assert that their house staff associations, both with longstanding collective-bargaining rights which were initiated when the respective hospitals were public institutions, lost those rights after privatization of the hospitals. They aver that in both instances, it was the private employer's reliance on the Board's Cedars-Sinai policy that caused their loss of bargaining rights. They further contend that, because of the state of the law, these committees are effectively denied any realistic opportunity to obtain a fair and binding vote of the house staff at their hospitals to ascertain whether there is majority support for a union, and that committee members are subject to recrimination and retaliation for their concerted activities, without any recourse to a legal process or remedy. Accordingly, they jointly urge the Board to void Cedars-Sinai and St. Clare's Hospital and to deem house staff to be "employees" under the Act.
The California Medical Association, arguing in support of the Petitioner, asserts that it specifically supports the right of house staff physicians to unionize and to negotiate collectively. It notes that modifications in Federal and state reimbursement programs, and the programs and policies designed to promote competition among health care providers, are generating new economic pressures. Thus academic medical centers face major challenges resulting from both private market driven forces and public reforms, and that these changes profoundly affect the work environment of house staff, as well as the poor and high-risk patients they care for. Accordingly, it argues that it is critically important that house staff have the right to bargain collectively as academic medical centers adapt to economic and political challenges now and in the future. Finally, it points out that speculation about the harm which would result from granting house staff collective-bargaining rights is not borne out by experience.
**11 The American Medical Association and the Massachusetts Medical Society together argue that residents should have a right to negotiate as a group on issues of patient care and resident well being, but they should not have the right to strike. They further assert that the standards and procedures of the Accreditation Council for Graduate Medical Education (ACGME) provide the appropriate forum to address the concerns of residents. They point out that those standards and procedures are currently under development, and request that the Board rule consistently with their positions.
The American Public Health Association, in support of the Petitioner, argues that because quality of patient care and working conditions of the care-givers are closely related, the Board should recognize that house staff are employees entitled to engage in collective bargaining to improve their working conditions. It also recounts the story of Libby Zion, who died after going to the emergency room at a major New York City teaching hospital, and the resulting grand jury investigation and subsequent Bell Commission's study of, inter alia, residents' work schedules. It also argues that the dichotomy between "student" and "employee" is false. While house staff in their capacity as "trainees" are certainly the "beneficiaries" of training, likewise the hospital certainly is the beneficiary of the services and health care delivered to patients by house officers in their capacity as "doctors" and "employees." It further points out that house staff provide the bulk of physician-type services to the traditionally underserved in hospital emergency rooms and clinics, and that it would perhaps be insulting, if not disquieting, to the underserved to be told that their medical care is being provided not by "doctors" but by "students."
The American Medical Women's Association submitted a statement in support of the Petitioner, concurring in the position of the California Medical Association that interns, residents, and fellows are employees under the *159 Act, and urging that the Board reverse its decision in Cedars-Sinai.
The Association of American Medical Colleges, the American Hospital Association, the American Council on Education, the American Board of Medical Specialties, and the Council of Medical Specialty Societies together argue, in support of the Employer, that the Board in Cedars-Sinai and St. Clare's Hospital properly sought to avoid any involvement in academic decision making, and that the Board's rationale for such noninvolvement is even more compelling today than it was then. They contend that the reversal of Cedars-Sinai and St. Clare's Hospital would wrongly involve the Board and labor organizations in academic decision making. In response to the Petitioner's argument that its 40-year bargaining history "empirically demonstrates that the Board's fears expressed in Cedars-Sinai concerning the impact of collective bargaining upon medical training are unfounded," they point out that if the law is changed and house staff are held to be employees under the Act, any labor organization may seek to represent those employees and those unions may aggressively seek to become involved in "academic" issues.
III. ANALYSIS
**12 Over 20 years ago, this Agency--despite the dissent of one member-- concluded that hospital house staff were "primarily" students, and thus were not employees within the meaning of Section 2(3) of the Act. Cedars-Sinai, 223 NLRB at 253. The Board "clarified" its position shortly thereafter to explain that it did not mean to find that private sector house staff were not covered by the statute, but that as a particular type of student they were not entitled to collective-bargaining rights. St. Clare's Hospital, 229 NLRB at 1003.
We are convinced by normal statutory and legal analysis, including resort to legislative history, experience, and the overwhelming weight of judicial and scholarly opinion, that the Board reached an erroneous result in Cedars- Sinai. Accordingly, we overrule that decision and its offspring, conclude that house staff are employees as defined by the Act, and find that such individuals are therefore entitled to all the statutory rights and obligations that flow from our conclusion.
A. Background
In Cedars-Sinai Medical Center, 223 NLRB 251 (1976), decided shortly after the enactment of the Health Care Amendments to the Act, a Board majority concluded that interns, residents and fellows were not statutory employees. Although recognizing that house staff received many benefits characteristic of employee status, the Board majority concluded that house staff were primarily engaged in graduate educational training, and therefore were students rather than employees entitled to bargaining rights under the Act. The majority reasoned that house staff entered into a relationship with a hospital not primarily to earn a living, but to fulfill educational requirements of state or specialty boards. The majority placed little reliance on the fact that house staff spent most of their time in direct patient care, finding that "this is simply the means by which the learning process is carried out." Concerning the stipends house staff received, the Board majority concluded that such pay was more in the nature of a living allowance than compensation for services. The Board majority noted that stipends were fixed depending on the year of training, and did not vary depending on hours worked or with the nature of the services rendered. The majority further found significant that house staff tenure was related to the particular education program, that such a relationship was of relatively short duration, and that there was little chance that a regular employment relationship would be established following completion of the program. [FN14]
In St. Clare's Hospital & Health Center, 229 NLRB 1000 (1977), the Board attempted to clarify its Cedars-Sinai decision by emphasizing that the decision was one involving students. Because of intervening litigation, [FN15] and a "misunderstanding" that "can perhaps justifiably be laid at our feet for we may not have been as precise as we might have been in articulating our views," the Board majority attempted to rearticulate its Cedars-Sinai decision. The majority set forth what it identified as four categories of cases involving students. The majority concluded that house staff fell within the fourth category, "that in which students perform services at their educational institutions which are directly related to their educational program." 229 NLRB at 1002 (citation omitted). The majority reasoned that such individuals are serving primarily as students and not primarily as employees, that their relationship with their institutions is therefore predominantly academic rather than economic in nature, and thus that such interests are not "readily adaptable to the collective-bargaining process." 229 NLRB at 1002.
B. Section 2(3) of the Act
**13 We find the Board's determination in Cedars-Sinai and St. Clare's Hospital of the status of house staff to be flawed in many respects. We begin our analysis with reference to Section 2(3) of the Act. That key statutory language is as follows:
The term "employee" shall include any employee ... unless the Act [this subchapter] explicitly states otherwise ... but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or *160 any individual employed as an independent contractor ....
The "breadth of § 2(3)'s definition is striking. The Act specifically applies to 'any employee."' Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 891-892 (1984) (undocumented aliens "plainly come within the broad statutory definition of 'employee"'). The exclusions listed in the statute are limited and narrow, and do not, on their face, encompass the category "students." Thus, unless there are other statutory or policy reasons for excluding house staff, they literally and plainly come within the meaning of "employee" as defined in the Act. We find no such reasons.
In his dissent in Cedars-Sinai, then-Member Fanning traced the Act's definition of "employee" as an out-growth of the common law concept of the "servant." 223 NLRB at 254. In turn, the master-servant relationship itself finds its antecedents in common law agency doctrine. Id. at 254-255. See also NLRB v. Town & Country, 516 U.S. 85, 93-95 (1995). At common law, a servant was one who performed services for another and was subject to the other's control or right of control. Consideration, i.e., payment, is strongly indicative of employee status. Id. Cf. WBAI Pacifica Foundation, 328 NLRB 1273 (1999). We agree with this analysis.
The Supreme Court in Town & Country echoed the same logic in its analysis of Section 2(3). Specifically, the Court noted that the Board's definition of the term "employee" as used in the Act reflected the common law agency doctrine of the conventional master-servant relationship. 516 U.S. at 93-95. In this recent case, the Court reiterated that the language of this section of the statute is "broad":
The ordinary dictionary definition of "employee" includes any "person who works for another in return for financial or other compensation." American Heritage Dictionary 604 (3d ed. 1992). See also Black's Law Dictionary 525 (6th ed. 1990) (an employee is a "person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employees in the material details of how the work is to be performed"). The phrasing of the Act seems to reiterate the breadth of the ordinary dictionary definition, for it says "[t]he term 'employee' shall include any employee." 29 U.S.C. § 152(3) (1988 ed.) [Emphasis added.]
**14 For another thing, the Board's broad, literal interpretation of the word "employee" is consistent with several of the Act's purposes, such as protecting "the right of employees to organize for mutual aid without employer interference" ... and "encouraging and protecting the collective- bargaining process."... And, insofar as one can infer purpose from congressional reports and floor statements, those sources too are consistent with the Board's broad interpretation of the word. It is fairly easy to find statements to the effect that an "employee" simply "means someone who works for another for hire." H.R.Rep. No. 245, 80th Cong., 1st Sess., 18 (1947), and includes "every man on a payroll." 79 Cong. Rec. 9686 (1935) (colloquy between Reps. Taylor and Connery). ... At the same time, contrary statements, suggesting a narrow or qualified view of the word, are scarce, or nonexistent--except, of course, those made in respect to the specific (here inapplicable) exclusions written into the statute.
Town & Country Electric, 516 U.S. at 90-91 (some citations omitted). As the Court noted, the Board's historic, broad, literal reading of the statute finds support in Supreme Court precedent. Id. at 91-92; Sure-Tan, supra; NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170, 189- 190 (1981); Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185-186 (1941).
We believe, therefore, that whatever other description may be fairly applied to house staff, it does not preclude a finding that individuals in such positions are, among other things, employees as defined by the Act.
Ample evidence exists here to support our finding that interns, residents and fellows fall within the broad definition of "employee" under Section 2(3), notwithstanding that a purpose of their being at a hospital may also be, in part, educational. That house staff may also be students does not thereby change the evidence of their "employee" status. As stressed above, nothing in the statute suggests that persons who are students but also employees should be exempted from the coverage and protection of the Act. The essential elements of the house staff's relationship with the Hospital obviously define an employer- employee relationship.
First, house staff work for an employer within the meaning of the Act. Second, house staff are compensated for their services. The house staff, as noted, receive compensation in the form of a stipend. There is no exclusion under the Internal Revenue Code for such stipends. The Hospital withholds Federal and state income taxes, as well as social security, on their salaries.
**15 Further, the interns, residents, and fellows receive fringe benefits and other emoluments reflective of employee status. Workers' compensation is provided. They receive paid vacations and sick leave, as well as parental and bereavement leave. The Hospital provides health, dental, and life insurance, as well as malpractice insurance, for house staff and other Hospital employees.
Third, house staff provide patient care for the Hospital. Most noteworthy is the undisputed fact that house staff spend up to 80 percent of their time at the Hospital engaged in direct patient care. The advanced training in the specialty the individual receives at the Hospital is not inconsistent with "employee" status. It complements, indeed enhances, the considerable services the Hospital *161 receives from the house staff, and for which house staff are compensated. That they also obtain educational benefits from their employment does not detract from this fact. Their status as students is not mutually exclusive of a finding that they are employees.
As "junior professional associates," [FN16] interns, residents, and fellows bear a close analogy to apprentices in the traditional sense. It has never been doubted that apprentices are statutory employees eligible to vote in elections with their more experienced colleagues. See, e.g., The Vanta Co., 66 NLRB 912 (1946). [FN17] Nor does the fact that interns, residents and fellows are continually acquiring new skills negate their status as employees. Members of all professions continue learning throughout their careers, and many professions, including those in the healthcare industry, require individuals to be trained further after graduation in order to be licensed or received in the field. See, e.g., Wurster, Bernardi & Emmons, Inc., 192 NLRB 1049, 1050- 1051 (1971) (describing licensing process for graduates of architecture schools); UTD Corp., 165 NLRB 346 (1967) (apprentices in 4-year training program included in production and maintenance unit); General Electric Co., 131 NLRB 100, 104 (1961) (describing employer training program for apprentices in tool and die trade; "[t]he very purpose of an adequate apprenticeship program is to broadly train apprentices in their craft so that they may practice it in any industry or company or advance into executive or managerial responsibilities"); Riverside Memorial Chapel, 92 NLRB 1594, 1595 (1951) (describing steps necessary for apprentice embalmers to be licensed). "[F]ledgling lawyers employed by a law firm spend a great deal of time acquiring new skills, yet no one would contend that they are not employees of the law firm." Regents of the University of Michigan v. Michigan ERC, 204 N.W. 2d 218, 226 (Mich. 1973). Plainly, many employees engage in long-term programs designed to impart and improve skills and knowledge. Such individuals are still employees, regardless of other intended benefits and consequences of these programs.
**16 Additionally, while house staff possess certain attributes of student status, they are unlike many others in the traditional academic setting. Interns, residents, and fellows do not pay tuition or student fees. [FN18] They do not take typical examinations in a classroom setting, nor do they receive grades as such. They do not register in a traditional fashion. Their education and student status is geared to gaining sufficient experience and knowledge to become Board-certified in a specialty.
Review of our decisions concerning students does not lead to a different result. In prior cases, there has been no question that students are statutory employees. Rather, the issue has been the eligibility of student workers based on community of interest considerations. It is true, as found by the Board in St. Clare's Hospital, that the Board has, on occasion, excluded students from bargaining units. But it has not done so, as posited in St. Clare's Hospital, on the basis of some broad delineation of categories of students. Rather, as Member Fanning noted in his St. Clare's Hospital dissent, the Board has analyzed the placement of students, as it has other categories of employees, under community-of-interest principles, determining on that basis whether such workers may be included in the unit. See, e.g., NLRB v. Action Automotive, 469 U.S. 490, 496 (1985) (relatives of owners of closely held corporation excluded from unit as they do not share a community of interest with unit employees); Town & Country, 516 U.S. at 97 (identifying confidentials as employees who are nonetheless excluded from bargaining units). The Board traditionally looks to whether students work in the same capacity as other workers and what their stake in the outcome of negotiations would be, just as it does with every other set of employees. St. Clare's Hospital.
C. Other Statutory Considerations
Our interpretation of Section 2(3) of the Act to include house staff as statutory employees is further supported by reference to Section 2(12) of the Act. That provision defines a professional employee as:
(a) any employee engaged in work ... (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital ... or
(b) any employee who (i) has completed the courses of specialized intellectual instruction and study described in clause (iv) of paragraph (a) and (ii) is performing related work under the supervision of a professional person to qualify himself to become a professional employee as defined in paragraph (a).
Literally read, Section 2(12)(b) embraces house staff. Interns, residents, and fellows clearly are individuals who have completed a course of specialized intellectual instruction and study "in an institution of higher learning or a hospital." Just as plainly, they are "performing related work under the supervision of a professional to qualify" to be a professional as defined in the Act. The legislative history of the Taft-Hartley amendments (the Labor Management Relations Act) supports the conclusion that this section of the Act was crafted to include "such persons as legal, engineering, *162 scientific and medical personnel along with their junior professional associates." I Leg. Hist. 540 (LMRA 1947) (emphasis added). As Member Fanning stated in his Cedars-Sinai dissent, this "definition fits, precisely, housestaff officers." 223 NLRB at 258. See also Physicians Nat. House Staff Assn. v. Fanning, 642 F.2d 492, 500 (D.C. Cir. 1980) (Chief Judge Wright, dissenting). [FN19] We find, therefore, based on the foregoing and the record as a whole, that house staff clearly fit within the statutory definition of "employee."
D. Legislative History of the 1974 Healthcare Amendments
**17 Were there any lingering doubt about our interpretation of Section 2(3) as applied to interns, residents, and fellows, it is put to rest by consideration of the legislative history of the 1974 Healthcare Amendments. [FN20] Member Fanning, in his dissent in Cedars-Sinai, as well as Chief Judge Wright in his dissent in Physicians Nat. House Staff, extensively analyzed this history. In agreement with them, we believe, based on our own review, that the legislative history amply demonstrates that Congress, to the extent it considered the question, thought house staff to be statutory employees. [FN21]
In 1974, Congress extended the Board's jurisdiction to nonprofit healthcare facilities. In repealing the exemption of private, nonprofit hospitals from the definition of "employer," Congress was responding to the spate of recognition strikes in the healthcare industry, Physicians Nat. House Staff, 642 F.2d at 505, and stressed the need for continuous health services. [FN22] In Senate hearings on the amendments, representatives for the house staff, while urging that Congress adopt the amendments, advanced a new provision that would have excluded house staff from the ambit of Section 2(11) of the Act, which sets forth the definition of "supervisor," thus ensuring that house staff were not excluded from coverage of the Act on that basis. The committee report on why this legislative provision was not adopted bears reciting:
Various organizations representing health care professionals have urged an amendment to Section 2(11) of the Act so as to exclude such professionals from the definition of "supervisor." The Committee has studied this definition with particular reference to health care professionals, such as ... interns, residents, fellows ... and concludes that the proposed amendment is unnecessary because of existing Board decisions. The Committee notes that the Board has carefully avoided applying the definition of a "supervisor" to a health care professional who gives directions to other employees, which direction is incidental to the professional's treatment of patients and thus is not the exercise of supervisory authority in the interest of the employer. [FN23]
This statement clearly assumes that house staff are employees. For if they were thought to be students, their status as supervisors would not be pertinent. Physicians Nat. House Staff, 642 F.2d at 505; Student-Workers at 768.
This view is underscored by the remarks of Senator Cranston, cosponsor and floor manager of the Senate bill. Senator Cranston, in introducing the bill, explained that one of the conditions the bill was designed to remedy was the "notoriously underpaid ... average annual salary for all hospital employees-- including doctors .... According to [the] president of the Physicians National House staff Association, the average house staff officer--intern, resident, or fellow--works 70 to 100 hours per week, and earns about $10,000 per year. His hourly wage then ranges from $1.92 to $2.74." [FN24] Senator Cranston's remarks about interns, residents, and fellows obviously reflect his assumption that they were to be covered by the legislation he was offering. Physicians Nat. House Staff, 642 F.2d at 505-506. [FN25]
**18 This legislative history is very persuasive. Yet, the Employer does not address it. Rather, the Employer argues that the failure of Congress to pass legislation, formally considered in 1979, that would have set aside the Board's Cedars-Sinai and St. Clare's Hospital decisions, means that Congress approved the Board's decisions in those cases, and thus we are not free to overrule them. The argument lacks merit.
It is a canon of statutory construction that opinions of legislatures expressed years after an Act was passed should not be given weight as to the meaning of the earlier Act. Teamsters v. U.S., 431 U.S. 324, 354 fn. 39 (1977) ("views of members of a later Congress ... are *163 entitled to little if any weight"); U.S. v. Mine Workers, 330 U.S. 258 (1947); Physicians Nat. House Staff, 642 F.2d at 509-510. Indeed, when the language of a statute is plain--as it is here--one is to give the words their plain meaning. American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 75 (1982).
It is a dubious proposition indeed that the inaction of one house of Congress could be relevant evidence of what a previous entire Congress meant to do when it acted in its "full constitutional cycle." Physicians Nat. House Staf, 642 F.2d at 510. The germaneness of subsequent congressional action is further diminished where, as here, the alleged "action" is, in fact, inaction. Our reconsideration of Cedars-Sinai and related cases cannot appropriately be foreclosed merely because of the failure of one house of Congress to reverse that and related cases. [FN26]
E. Other Considerations
As detailed above, we find persuasive the dissent by Member Fanning in Cedars-Sinai. The majority in that case set forth no coherent rationale and never answered satisfactorily any of the dissent's criticisms, nor, as we have seen, was their later attempt to justify the result in St. Clare's Hospital equal to the task. Similarly, we find it instructive that four judges of the Court of Appeals for the District of Columbia Circuit believed that the Board's decision in Cedars-Sinai was so aberrant as to cause them to vote to reverse it in Leedom v. Kyne [FN27] litigation. Physicians Nat. House Staff Assn. v. Fanning, 642 F.2d 492, 500 (D.C. Cir. 1980). Leedom v. Kyne is limited to only those cases in which the Board has so erred as a matter of law that a United States District Court asserts jurisdiction over a suit to set aside a Board finding in a representation proceeding. Physicians Nat. House Staff, 642 F.2d at 502-503.
**19 Further, we reach our decision here to overrule Cedars-Sinai and its progeny on the basis of our experience and understanding of developments in labor relations in the intervening years since the Board rendered those decisions. Almost without exception, every other court, agency, and legal analyst to have grappled with this issue has concluded that interns, residents, and fellows are, in large measure, employees. Regents of the University of Michigan v. ERC, supra, 204 N.W.2d at 225 (evidence on doctors' pay, benefits, amount of time devoted to patient care, and duties and responsibilities to diagnose and prescribe patient care program and put it into effect "far more indicative of an employee (i.e.--in this case a doctor) than a student"); House Officers Assn. for the University of Nebraska Medical Center v. University of Nebraska Medical Center, 255 N.W.2d 258 (Neb. 1977) ("the obvious conclusion from the recitation of facts is that House Officers are both students and employees"); University Hospital v. SERB, 587 N.E.2d 835 (Ohio 1992), rehearing denied 590 N.E.2d 753 (May 6, 1992); The Regents of the University of California v. PERB, 715 P.2d 590 (Cal. 1986); Walls v. North Mississippi Medical Center, 568 So.2d 712 (Miss. 1990); Long Beach Veterans Administration Medical Center, Long Beach, CA, 7 FLRA 134 (1981); Veterans Administration Medical Center, Brooklyn, NY, 8 FLRA 289 (1982); Veterans Administration Medical Center, East Orange, NJ, 20 FLRA 900 (1985); City of Cambridge, 2 MLC 1450 (Mass. Lab. Rel. Comm. 1976); Student-Worker, supra; Note, Medical Housestaff: Scholars or Working Stiffs? The Pending PERB Decision, 12 Pac. L.J. 1127 (1981); Malin, Student Employees & Collective Bargaining, 69 Ky. L.J. 1 (1980). Cf. Ross v. University of Minnesota 439 N.W.2d 28 (Minn. 1989). But see Philadelphia Assn. of Interns & Residents v. Albert Einstein Medical Center, 369 A.2d 711 (Penn. 1976); Sepinuck, Hospital Residents & Interns: Inconsistent Treatment Under Federal Law, 29 St. Louis L.J. 665 (1985).
These judicial bodies, and other commentators, have concluded that house staff are employees, in addition to being students, on similar facts as exist here. In each case, the courts and others have rejected the analysis the Board adopted in Cedars-Sinai. In its stead, these courts and commentators have assessed the realities of the relationship between house staff and the hospitals that they serve, and have concluded that the relationship exhibits sufficient factors to warrant a finding of employee status.
**20 Moreover, there is no indication that any of the negative problems flowing from such a finding, as predicted by the Cedars-Sinai/St. Clare's Hospital opinions, have occurred, or would occur. It is plain that collective bargaining by public sector house staff has been permitted and widely practiced. No party or amicus in the instant proceeding has pointed to any difficulty arising from this bargaining. Indeed, the American Medical Association, although opposed to granting house staff the right to strike under the Act, urges that house staff be accorded bargaining rights. [FN28] Further, since an overriding purpose of the 1974 Healthcare Amendments was the elimination of recognition strikes and picketing, according house staff employee status will have the beneficial purpose of bringing them within the ambit of the Act, and providing a mechanism for resolving recognition and other representation issues without resort to such tactics.
*164 As a policy matter, we do not believe that the fact that house staff are also students warrants depriving them of collective-bargaining rights, or withholding the statutory obligations attendant to those rights. The Employer and Member Brame argue strenuously that by granting employee status to house staff, the Board will improperly permit intrusion by collective bargaining into areas involving academic freedom. This argument puts the proverbial cart before the horse. The contour of collective bargaining is dynamic with new issues frequently arising out of new factual contexts: what can be bargained about, what the parties wish to bargain about or concentrate on, and what the parties are free to bargain about, may change. But such problems have not proven to be insurmountable in the administration of the Act. We need not define here the boundaries between permissive and mandatory subjects of bargaining concerning interns and residents, and between what can be bargained over and what cannot. We will address those issues later, if they arise. But we note that there are often restrictions on bargaining due to outside influences, e.g., contracts an employer may have with other concerns that require the employer to conduct its business in a specific manner, or specifications in a contract that limit what an employer may or may not do. An employer is always free to persuade a union that it cannot bargain over matters in the manner suggested by the union because of these restrictions. But that is part of the bargaining process: the parties can identify and confront any issues of academic freedom as they would any other issue in collective bargaining. The parties in this case are not novices to collective bargaining. If the parties cannot resolve their differences through bargaining, they are free to seek resolution of the issues by resort to our processes, and we will address them at the appropriate time.
The arguments raised by the Employer regarding possible intrusion on academic freedom reflect those raised before state courts that have confronted the issue of the employee status of house staff. Those courts' responses to these arguments echo those we have set forth herein. For example, the Michigan Supreme Court faced a constitutional argument that by finding house staff to be employees, the court would infringe on the constitutional autonomy of the Board of Regents. Regents of the University of Michigan, supra. The court noted that because of the "unique nature" of the University of Michigan, the scope of bargaining "may be limited" if the matter fell "clearly" within the educational sphere. 204 N.W.2d at 224. The court continued:
**21 For example, the Association clearly can bargain with the Regents on the salary that their members receive since it is not within the educational sphere. While normally employees can bargain to discontinue a certain aspect of a particular job, the Association does not have the same latitude as other public employees. For example, interns could not negotiate working in the pathology department because they found such work distasteful. If the administrators of medical schools felt that a certain number of hours devoted to pathology was necessary to the education of the intern, our Court would not interfere since this does fall within the autonomy of the Regents under Article VIII, § 5. Numerous other issues may arise which fall between these two extremes and they will have to be decided on a case by case basis.
204 N.W.2d at 224.
The Supreme Court of California addressed a similar argument:
The University asserts that if collective bargaining rights were given to housestaff the University's educational mission would be undermined by requiring bargaining on subjects which are intrinsically tied to the educational aspects of the residency programs. This "doomsday cry" seems somewhat exaggerated in light of the fact that the University engaged in meet-and-confer sessions with employee organizations representing housestaff prior to the effective date of [the relevant statute]. Moreover, the University's argument is premature. The argument basically concerns the appropriate scope of representation under the Act. (See § 3562, subd. (q).) Such issues will undoubtedly arise in specific factual contexts in which one side wishes to bargain over a certain subject and the other side does not. These scope-of-representation issues may be resolved by the [PERB] when they arise.
The Regents of the University of California v. PERB, 715 P.2d at 604 (footnote omitted).
Today, we accord individuals who clearly are employees within the meaning of the Act the rights that are afforded all such employees, and likewise impose the responsibilities commensurate with those rights. We believe that our interpretation of the statute, informed by analysis of the facts here and experience, is a reasonable one that takes into account the entire nature of the house staff-hospital relationship. [FN29]
We cannot subscribe to dissenting Member Brame's forecast of doom to medical education as a consequence of our decision today. We simply cannot say, either as a matter of law or as a matter of policy, that permitting medical interns, residents and fellows to be considered as employees entitled to the benefits of the Act would make them any less loyal to their employer or to their patients. Nor can we assume that the unions that represent them will make demands upon them or extract concessions form their employers that will interfere with the educational mission of the institutions they serve, or prevent them from obtaining the education necessary to complete *165 their professional training. If there is anything we have learned in the long history of this Act, it is that unionism and collective bargaining are dynamic institutions capable of adjusting to new and changing work contexts and demands in every sector of our evolving economy. We have no doubt that they can also adjust to accommodate the special functions of medical house staff. To assume otherwise is not only needlessly pessimistic, but gives little credit to the intelligence and ingenuity of the parties.
IV. ANCILLARY ISSUES
**22 Having determined that BMC's house staff are employees within the meaning of Section 2(3) of the Act, we now turn to consideration of other issues raised by the parties. [FN30]
A. Labor Organization Status
BMC contends that the petition must be dismissed because the Petitioner is not a labor organization within the meaning of Section 2(5) of the Act in that it is not an organization in which "employees" participate. Since we are finding herein that interns, residents, and fellows employed by BMC are employees within the meaning of Section 2(3) of the Act, and since the record establishes that the Petitioner is an organization in which employees (house staff) participate and that exists at least in part for the purpose of dealing with employers concerning wages, hours, and terms and conditions of employment, we conclude that the Petitioner is a labor organization within the meaning of Section 2(5). Alto Plastics Mfg. Corp., 136 NLRB 850, 851-852 (1962).
B. Joint Employer Issues
As noted by the Regional Director, BMC argues that several administrative problems would result if the Board were to find that its house officers are statutory employees. First, BMC contends that it has various affiliations with other institutions which will raise complex questions about joint employer status. Second, BMC contends that, because some of those institutions are government entities not subject to the Board's jurisdiction, our assertion of jurisdiction over the house officers will present numerous bargaining and enforcement problems.
The record shows that BMC's house officers are assigned to various clinical rotations throughout BMC. In addition, as found by the Regional Director, house officers in some BMC residency programs perform one or more rotations at other institutions with which BMC has an affiliation agreement. As they rotate through the various clinical assignments, house officers remain part of BMC's residency program. This is so regardless of where they are actually performing their duties and although they may perform their duties under the medical direction of one or more physicians at the site of the rotation. Importantly, however, residents in all BMC programs spend the vast majority of their residency at BMC's facilities.
Although this situation potentially presents various, and perhaps unusual, issues for resolution through collective bargaining, in that employees (residents) are for discrete periods performing services at the facility of another employer or employers, these issues do not appear to be novel or insurmountable. In any event, at this juncture any such potential problems are speculative. [FN31]
In addition to the clinical rotations discussed above, BMC operates at least two joint residency programs with other institutions. As described by the Regional Director, one is a joint residency program in Oral and Maxillofacial Surgery with Tufts University, and another is the Boston Combined Residency Program in Pediatrics, which includes individuals in BMC's residency program as well as those in Children's Hospital's program, with some of the residents being paid by BMC and others by Children's Hospital. The Regional Director did not address whether these programs operate so as to require a finding that house staff enrolled in the two programs are jointly employed by BMC and either Children's Hospital or Tufts University. We find that the present record is insufficient to enable us to resolve this issue. Accordingly, we do not at this time make a final determination as to the unit placement of house staff assigned to joint residency programs such as that in Oral and Maxillofacial Surgery with Tufts University, and the Boston Combined Residency Program in Pediatrics, but shall permit them to vote under challenge. [FN32]
C. Temporary Employees
**23 BMC contends that numerous problems will arise as a result of the transient status of its house staff. It points out that while the length of the residency training programs *166 may vary, nearly all of the residents and fellows leave BMC once they complete their respective training program. It cites Board rulings that "temporary" employees are not eligible to vote in representation elections, because they do not have a sufficient interest to participate in a representation election. It also contends that there exists an even more fundamental issue regarding the temporary nature of these house staff. Thus, it avers that, because the house officers' goal is to obtain the necessary training to become Board certified and independent practicing physicians, it is questionable whether any of them have sufficient interest in terms and conditions of employment to warrant participation in an election. BMC argues that while house staff "may wish to soften the more rigorous and demanding elements of their own educational experience, they hold no genuine interest in affecting the enduring relationship between their program and future medical trainees." Finally, BMC contends that the rapid turnover of residents entering and graduating from the programs frustrates the intent of the Act. It claims that between the time an election petition is filed, the election results are certified, and a collective-bargaining agreement is negotiated and ratified, those residents who voted in the election would likely be transferred to a different rotation and, equally likely, would have graduated from the residency program.
Although, at first blush, the Employer seems to raise a troubling point, we ultimately find no merit to its argument. Ordinarily, "temporary" employees are not eligible to vote in a representation election. As we stated in St. Thomas-St. John Cable TV, 309 NLRB 712, 713 (1992), citing Pen Mar Packaging Corp., 261 NLRB 874 (1982):
It is established Board policy that a temporary employee is ineligible to be included in the bargaining unit and that an employee's eligibility status is determined by his status as of the eligibility payroll date.... The critical inquiry on this date is whether the "temporary" employee's tenure of employment remains uncertain.... [The] "date certain" eligibility test for temporary employees ... does not require a party contesting an employee's eligibility to prove that the employee's tenure was certain to expire on an exact calendar date. It is only necessary to prove that the prospect of termination was sufficiently finite on the eligibility date to dispel reasonable contemplation of continued employment beyond the term for which the employee was hired.
As we have set out above, every house officer at BMC is there for a set period of time, in some instances for 3 years, or for as many as 7 years, depending on the particular residency program. Relatively few of these house officers go on to become permanent staff physicians at BMC. [FN33] In this sense, then, all of BMC's house staff arguably are "temporary" employees because their employment will terminate on a date certain.
**24 Nevertheless, we do not find that house staff are "temporary" employees as the Board has defined that term. Thus, the Board has never applied the term "temporary" to employees whose employment, albeit of finite duration, might last from 3 to 7 or more years, and we will not do so here. In many employment relationships, an employee may have a set tenure and, in that sense, may not have an indefinite departure date. Athletes who have 1, 2, or greater years' length employment contracts are, theoretically at least, employed for a limited time, unless their contracts are renewed; work at a legal aid office may be for a set 2-year period; a teaching assignment similarly may be on a contract basis. To extend the definition of "temporary employee" to such situations, however, would be to make what was intended to be a limited exception swallow the whole.
D. The Appropriate Bargaining Unit
BMC argues that if its house staff are employees under the Act, the petition must be dismissed because the Petitioner seeks to represent a unit that is not appropriate under the Board's Rule on collective-bargaining units in the health care industry. [FN34]
BMC notes that in 1989, the Board promulgated the Rule defining appropriate bargaining units for acute health care facilities. BMC contends that, absent extraordinary circumstances in which there are existing nonconforming units, in acute care hospitals only the following eight bargaining units will be found appropriate by the Board: (1) all registered nurses; (2) all physicians; (3) all professionals except for registered nurses and physicians; (4) all technical employees; (5) all skilled maintenance employees; (6) all business office clerical employees; (7) all guards; and (8) all nonprofessional employees except for technical employees, skilled maintenance employees, business office clerical employees, and guards. BMC argues that, even if its house staff are to be regarded as physicians, the petition must be dismissed because it does not seek a unit of all physicians. It notes that house staff are generally regarded as "doctors" although some, as noted above, have only temporary licenses. BMC further notes that it has on its payroll at least two nonmanagement staff physicians, who are also regarded as "doctors." It contends that since the Petitioner does not seek to include these two nonmanagement staff physicians, the petition must be dismissed as contrary to the Rule.
BMC further contends that the Rule's exception for "existing non-conforming units" will not solve this dilemma in that there is no such unit of employees but only a unit of students, since BMC has never recognized its *167 house staff to be anything but students, and certainly not as employees. Accordingly, BMC contends, the Board will be creating a ninth appropriate bargaining unit if it finds appropriate a separate unit of house staff. BMC further argues that the consequences of the Board certifying a "partial unit of physicians" will have "significant ramifications on a nation-wide basis." In this regard, BMC contends that, contrary to the Board's rulemaking and the admonition from Congress against undue proliferation of bargaining units in the health care industry, physicians at teaching hospitals could be fragmented into two groups.
**25 The Petitioner counters these arguments with the contention that since, by its petition, it "seeks reversal of a Board policy of 21 years' duration and brings into the ambit of the Act a whole class of previously excluded employees, it is apparent that these circumstances are extraordinary." The Petitioner argues that the so-called "attending physicians" have a "separate and distinct community of interest" from the house staff, given that they are significantly better paid and are appointed to the faculty of the Boston University Medical School, and that they regularly evaluate the performance of interns, residents, and fellows under their supervision and direction. It does not address the possible inclusion of the two nonmanagerial staff physicians in the bargaining unit. It does argue, however, that should the Board reverse its long-held policy that house staff are not employees under Section 2(3) of the Act, the existing history of collective bargaining in a distinct unit of house staff at BMC, and the evidence of very sharp differences in salary, hours, and duties plainly warrant a determination that extraordinary circumstances exist which render appropriate a departure from the Rule.
In considering the merits of the parties' contentions, it is obvious that when the Rule was considered and adopted, house staff were excluded from all proposed bargaining units, as well as from the units found appropriate in the final Rule, since under Cedars-Sinai, supra, they were students who did not possess statutory organizational rights. See Notice of Proposed Rulemaking and Notice of Hearing, 52 Fed.Reg. 25142, 25417 (1987), reprinted at 284 NLRB 1516, 1523. However, in addressing the appropriateness of a separate unit of physicians in the Notice of Proposed Rulemaking, the Board stated:
[M]ost physicians employed by hospitals are considered either supervisors, managerial employees, or (in the case of interns and residents) students, and hence do not have statutory organizational rights....
Id. (Footnote omitted.) This language clearly indicates that the Board deemed interns and residents to be "physicians" for purposes of the Rule, [FN35] and that but for their student status, interns and residents under the Rule properly would be included in the physicians unit, just as supervisory or managerial physicians would be included in the physicians unit but for the statutory and Board policies mandating their exclusion.
In addition, even absent consideration of the above-cited language in the Proposed Rule, the facts in the instant case lead to the same conclusion; i.e., that house staff properly are included in the unit of "All physicians" under the final Rule, 54 Fed.Reg. 16336, 16348 (1989). Thus, as more fully set forth above in the Facts portion of our decision and in the attached Regional Director's decision, all house staff are medical school graduates who have passed Parts 1 and 2 of the U.S. medical licensing exam. The large majority (all except first year residents) also have passed Part 3 of the licensing exam, and are fully licensed physicians who may legally practice medicine, without restriction. [FN36] All house staff are qualified to perform, and in fact do perform, medical procedures that only licensed physicians are permitted by state law to perform. Hence, it can fairly be said that house staff possess the types of skills and are required to perform the types of job duties common to other physicians, at similar, albeit not identical, skill levels. [FN37]
**26 To be sure, there are some differences between the duties performed and the skills possessed by BMC's staff physicians and the duties performed and the skills possessed by its house staff. But we find that these differences are insufficient to warrant creation of a ninth appropriate unit in acute care hospitals (with two of those nine units consisting of physicians). Similarly, we find that the skills, duties, and training possessed by all physicians, including house staff, is sufficiently similar that to place them in separate units would unduly fragment a fairly homogeneous grouping of medical professionals.
Although the Petitioner does not explicitly argue the matter, its unit contentions implicitly raise the question of whether the Board should find the requested unit of house staff appropriate as an historically recognized nonconforming unit. The Health Care Rule explicitly permits representation elections in nonconforming units in *168 only two situations--where the parties have stipulated to an otherwise acceptable nonconforming unit, Section 103.30(d), [FN38] or where a petition is for an additional unit in the face of an existing nonconforming unit, Section 103.30(c). [FN39] Neither situation is present here. The parties have not stipulated to a house staff unit, and, although the recognized house staff unit might be considered an existing nonconforming unit, the petition is not for an additional (i.e., different) unit. An example of the latter situation could be a petition for a unit of physicians where there is an existing unit of house staff, but where there is such a petition, the Board will find appropriate such additional units which comport, "insofar as practicable," to the Rule. See generally, Kaiser Foundation Hospitals, 312 NLRB 933 (1993) (severance of skilled maintenance unit from larger nonconforming unit inappropriate); St. John's Hospital, 307 NLRB 767 (1992) (unit including only a portion of the remaining unrepresented skilled maintenance employees inappropriate).
Nor do we agree, at least in the circumstances of this case, that the existence of the historical unit of house staff, established under the Massachusetts state public employee collective-bargaining law, should be found to be an "extraordinary circumstance" under Section 103.30(b) of the Rule, [FN40] such that the requested unit of house staff should be found appropriate notwithstanding the provisions of the Rule. It is undisputed that there are only two staff physicians employed by the Employer who would be eligible for inclusion in a bargaining unit of "all physicians." Even assuming, but without deciding, [FN41] the existence of the historical unit constitutes an extraordinary circumstance in this regard, the fact that there are only two employee-staff physicians convinces us that the appropriate unit in this case must include those individuals.
**27 Accordingly, pursuant to the Board's Final Rule on collective- bargaining units in the health care industry, [FN42] we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act:
All physicians, including interns, residents and fellows, employed by the Employer at its hospital located in Boston, Massachusetts; excluding all other employees, guards, and supervisors as defined in the Act.
[Direction of Election omitted from publication.]
FN1. 223 NLRB 251 (1976).
FN2. 229 NLRB 1000 (1977).
FN3. Motions for oral argument were filed by the Employer and by amici curiae the Association of American Medical Colleges, the American Hospital Association, the American Council on Education, the American Board of Medical Specialties, and the Council of Medical Specialty Societies. On March 16, 1998, the Board denied these motions.
FN4. Amicus status was granted to the following interested organizations, all of which filed briefs: the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) and the American Nurses Association; the Association of American Medical Colleges, the American Hospital Association, the American Council on Education, the American Board of Medical Specialties, and the Council of Medical Specialty Societies; the American Medical Students Association; the University of Michigan House Officers Association; the Medical Society of the State of New York; the Ad Hoc Committee for House Staff Rights at University Hospital, Inc. and the Ad Hoc Committee for House Staff Rights at Prince George's Hospital Center; the California Medical Association; the American Medical Association and the Massachusetts Medical Society; and the American Public Health Association. Additionally, the American Medical Women's Association filed a position statement.
FN5. The first year of residency is commonly referred to as an internship. In a 3-year residency program, for example, second-year residents are sometimes referred to as junior residents, and third-year residents are sometimes called senior residents. Interns, residents, and fellows are also sometimes referred to by their post-graduate year level (PGY or PL). For example, an intern is a PGY 1, a second-year resident is a PGY 2, and so on.
FN6. BMC contests the Regional Director's finding in this regard. It argues that the record amply demonstrates that attending physicians are solely responsible for patient admissions. We do not find the two statements to be mutually exclusive. We read the statement of the Regional Director to mean that interns do the work necessary to get a patient admitted once that decision has been made. To be sure, the record does indicate that no house staff, including interns, have admitting privileges at BMC.
FN7. BMC challenges this testimony and asserts that residents are supervised to a much greater degree than this testimony would suggest. BMC cites evidence, not directly contradicting this testimony, however, that pathology residents are not allowed to make patient diagnoses independently from an attending and than all autopsy work must be presented to an attending. Obviously, what is the rule in pathology is not necessarily the rule in pediatrics. BMC also cites testimony to the effect that residents formulate their patient care plans through a variety of interactive meetings with attending physicians and that attending physicians critique, review, and modify residents' patient care decisions. BMC points out that while interns may often make patient care decisions, those decisions are really not done independently from an attending physician, and attending physicians maintain constant supervision over all of the patients for whom they have ultimate responsibility. The Board recognizes that while the interns and residents are in many instances making patient care decisions, they have learned much from the attendings. The Board construes the 80-percent figure as an estimate of the instances where a patient care decision was made without direct input from an attending as to that specific decision regarding that particular patient, albeit, perhaps, in the past an attending had been involved in such a decision and therefore the resident, having "learned" from this past instance, can now comfortably make the same decision for another patient.
FN8. BMC argues that unless there is an emergency, no surgery is performed without an attending present and that even if there is an emergency situation, a resident's work is reviewed immediately following the procedure. Again, there is no real factual dispute here. The evidence indicates that under emergency conditions, certain procedures are undertaken by residents (in the absence of an attending) that would not otherwise be performed under normal (nonemergency) conditions without an attending being present. BMC also points out that no operations are conducted by residents in the surgery program without an attending being present, and that the mark of a good teacher is to supervise the residents in such a manner so as to allow them to feel as though they are in control of a case, when in fact the attending physician never loses full control of the case. The corollary finding to this is that the evidence indicates that the residents do a sufficient amount of the work for them to feel that they are "in control" of the case.
FN9. The Regional Director, recognizing that there is a "learning" aspect to the house staff's being at BMC, pointed out that in addition to the time spent in direct patient care (which is of course, as BMC points out, by and large how the house staff learn their craft), residents spend many hours each week attending various "didactic" conferences. She attempted to list some of these including "attending rounds," noon time 1-hour conferences, "grand rounds," and "journal club." BMC faults the Regional Director for not listing all of them and further asserts that the Regional Director failed to "adequately address other didactic sessions that ... offer no direct benefit to BMC, and that are not even directly related to the treatment of current patients." It makes this criticism even though the Regional Director did point out in her decision that "in some conferences residents review slides or X-rays of individuals who are no longer or never were patients of BMC, in order to learn diagnostic skills." It would appear from the briefs that the Petitioner would want us to believe that a minimum amount of time is spent by the house staff in such "didactic" sessions, and the Employer would have us believe that "residents dedicate a significant portion of their time at BMC not performing services, but attending and participating in classes, conferences, rounds and other purely didactic activities ...." Rather, the reality lies somewhere in the middle. Moreover, as noted by the Regional Director in her decision, according to the "Essentials of Accredited Residencies in Graduate Medical Education: Institutional and Program Requirements," commonly referred to as "the Essentials," the "training of residents relies primarily on learning acquired through the process of their providing patient care under supervision." As noted by the Regional Director, this document sets forth the standards for sponsoring institutions and for each type of residency program. It is the product of the Accreditation Council for Graduate Medical Education (ACGME). The ACGME has five sponsors, each of which appoints members to the council: the American Medical Association; the American Association of Medical Colleges; the American Board of Medical Specialties; the Council on Medical Subspecialties; and the American Hospital Association. Accordingly, it would seem that whatever time is spent by residents in so-called purely "didactic" sessions, that time is substantially less than the time they spend in providing patient care.
FN10. This evidence, offered by the Petitioner to show that in many ways the fully licensed residents function as full-fledged doctors in these moonlighting situations, is characterized by BMC as evidence that demonstrates that these doctors are students while in the BMC residency programs and that comparing the two situations "only serves to highlight the very essence of the academic nature of the graduate medical programs, and the student status residents have while enrolled."
FN11. See 88 Stat. 395, Legislative History of the Coverage of Nonprofit Hospitals Under the National Labor Relations Act, 1974 (P.L. 93-360) (S. 3203).
FN12. Contrary to these assertions, the Petitioner points to a "successful" history of collective bargaining at BMC. It asserts that the parties (actually BMC's predecessor) have had a collective-bargaining relationship since 1969, that the collective-bargaining agreement focuses on employment-related issues, that the Petitioner has never sought to bargain over academic prerogatives, and that the collective-bargaining agreements have actually been used by BMC to satisfy the ACGME Essentials standards.
FN13. Sec. 103.30 of the Board's Rules, 29 CFR § 103.30.
FN14. As discussed more fully below, Member Fanning dissented from the majority's decision.
FN15. The Board's Cedars-Sinai opinion begat a tangled web of litigation. See the discussion in St. Clare's Hospital, 229 NLRB at 1000, 1005.
FN16. 1 Leg. Hist. 540 (LMRA 1947).
FN17. Indeed, in the construction industry, it has long been the case that apprentices are included in units with journeymen. The practice is so well established that it has rarely been litigated. See, e.g., Heating, Piping & Air Conditioning Contractors, 110 NLRB 261, 263 (1954) (plumber and pipefitter apprentices included in respective craft units).
FN18. The only exception appears to be that several dental residents pay some tuition.
FN19. The Cedars-Sinai majority responded to this argument with sleight of hand simply by stating that since house staff are not employees within the meaning of the Act, there is no reason to refer to other sections of the Act (223 NLRB at 253 fn. 4).
FN20. Legislative History of the Coverage of Nonprofit Hospitals Under the National Labor Relations Act, 1974 (P.L. 93- 360) (S. 3203).
FN21. It is telling that the Board majority failed to address this legislative history in Cedars-Sinai. See Note, Student-Workers or Working Students? A Fatal Question for Collective Bargaining of Hospital House Staff, 38 U. Pitt. L. Rev. 762, 767 (1977) (hereafter Student-Workers); Physicians Nat. House Staff, 642 F.2d at 505-506.
FN22. Student-Workers at 767.
FN23. Legislative History of the Coverage of Nonprofit Hospitals at 13; S.Rept. 93-766, 93d Cong., 2d Sess. 6 (1974). See also Legislative History of the Coverage of Nonprofit Hospitals at 275, H.R. Rep. No. 1051 at 7 (1974).
FN24. Legislative History of the Coverage of Nonprofit Hospitals at 93, 120 Cong. Rec. 12937 (1974). As the dissent noted in Physicians Nat. House Staff, even the opponents of the 1974 Amendments assumed that house staff were employees. Senator Dominick "referred repeatedly to the coverage of house staff under the bill, grouping house staff together with other hospital employees." 642 F.2d at 506. See 120 Cong.Rec. 12971, 12580 (remarks of Senator Dominick).
FN25. The Cedars-Sinai majority's response to this legislative history was simply to posit that house staff were not employees, and thus there was no merit to the arguments based on the legislative history. It may be that such history does not require the Board to find house staff to be statutory employees. But it is no answer simply to ignore the contemporaneous understanding of those who sponsored the statute as to its meaning.
FN26. To the extent that post-Cedars Sinai congressional responses might be deemed relevant to consideration of the issue of employee status of house staff, we note that Representative Frank Thompson, a co-sponsor of the 1974 Health Care Amendments, stated that "[w]hen we passed the ... Amendments in 1974 ... we all thought, proponent and opponent alike, that medical house staff were included." 125 Cong. Rec. 33943 (1979).
FN27. 358 U.S. 184 (1958).
FN28. The American Medical Association proposes that matters between hospitals and house staff in this regard be governed by ACGME guidelines.
FN29. Action Automotive, supra.
FN30. In addition to the issues discussed below, BMC contends that if the Board finds that house staff are employees, then the chief residents should be excluded from the unit on the basis that they are 2(11) supervisors and managerial employees. The Regional Director thoroughly considered this issue and concluded that chief residents are not statutory supervisors or managerial employees. We affirm the Regional Director's conclusion in this regard, for the reasons stated by her.
FN31. That some of the institutions with which BMC maintains affiliations may be government entities over which the Board does not have jurisdiction does not foreclose our assertion of jurisdiction over BMC. See, e.g., Management Training Corp., 317 NLRB 1355 (1995).
FN32. The Regional Director noted that there are a number of house officers who are enrolled in BMC's residency program but are paid by other institutions, including approximately 15 house officers who are included in the bargaining unit presently represented by the Petitioner. All of these house officers are treated no differently from other house officers on BMC's payroll, including with respect to their training and rotations. The 15 house officers who were included in the bargaining unit receive the same wages and benefits as all other house staff. The Petitioner seeks to include in the unit herein the 15 house officers who it has historically represented. It appears that neither the Petitioner nor the Employer contend that other house staff not on BMC's payroll must be included in the unit. Under these circumstances, we shall not at this time determine whether the 15 historically represented house officers shall be included in the unit found appropriate, but direct that those individuals be permitted to vote under challenge.
FN33. See fn. 29 of the attached Regional Director's decision.
FN34. 54 Fed.Reg. 16336 (1989), reprinted at 284 NLRB 1580.
FN35. For this reason, and because the employment of house staff at some acute care hospitals was well known to the Board, we find that the Extraordinary Circumstances Exception of the Health Care Rule does not apply herein. See Second Notice of Proposed Rulemaking, 53 Fed.Reg. 33900 (1988), which provides, in relevant part:
To satisfy the requirement of "extraordinary circumstances," a party would have to bear the "heavy burden" to demonstrate that "its arguments are substantially different from those which have been carefully considered at the rulemaking proceeding," [such] as, for instance, by showing the existence of such unusual and unforeseen deviations from the range of circumstances revealed at the hearings and known to the Board from more than 13 years of adjudicating cases in this field, that it would be unjust or an abuse of discretion for the Board to apply the rules to the facility involved.
53 Fed.Reg. at 33933 (footnotes omitted).
FN36. First-year residents (interns) possess a limited license to practice medicine within the parameters of their residency program.
FN37. Cf. St. Luke's Health Care Assn., 312 NLRB 139, 141 (1993).
FN38. "(d) The Board will approve consent agreements providing for elections in accordance with paragraph (a) of this section, but nothing shall preclude regional directors from approving stipulations not in accordance with paragraph (a), as long as the stipulations are otherwise acceptable."
FN39. "(c) Where there are existing non-conforming units in acute care hospitals, and a petition for additional units is filed pursuant to section 9(1)(A)(i) or 9(c)(1)(B), the Board shall find appropriate only units which comport, insofar as practicable, with the appropriate unit set forth in paragraph (a) of this section."
FN40. "(b) Where extraordinary circumstances exist, the Board shall determine appropriate units by adjudication."
FN41. We note that the existing house staff unit is one that did not arise under the auspices of Board law but is one that was established under state authority. Thus, any request to have the Board recognize the existing house staff unit as an historically recognized unit raises comity issues similar to those presented to the Board after Congress gave it jurisdiction over nonprofit hospitals. The Board's attempts to grant comity to state-recognized units were rejected by the courts as contrary to Sec. 9(b) of the Act. See Long Island College Hospital v. NLRB, 566 F.2d 833, 841 (2d Cir. 1977); Memorial Hospital of Roxborough v. NLRB, 545 F.2d 351 (3d Cir. 1976). Also, see generally LaCrosse Tel. Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18, 26 (1949) ("A certification by a state board under a different or conflicting theory of representation may therefore be as readily disruptive of the practice under the federal act as if the orders of the two boards made a head-on collision.").
FN42. In view of our finding that the unit must, consistent with the Board's Health Care Rule, consist of all physicians employed by BMC, the Employer's contention that our finding a unit limited to house staff to be appropriate would be based on the Petitioner's extent of organization, and thus violative of Sec. 9(c)(5) of the Act, is moot.
**28 MEMBER HURTGEN, dissenting.
For more than 20 years, the Board has held that interns, residents, and fellows (house staff) are not employees entitled to bargain collectively under the Act. [FN1] As discussed infra, the courts have endorsed this position, as has the Congress of the United States. I see no reason now to proceed 180 degrees in the opposite direction. Instead, I agree with the result and rationale reached in those cases. I incorporate by reference the rationale of those cases, and thus need not repeat it here. I need only to add a few further thoughts.
First, the majority relies on two Supreme Court decisions that have issued since Cedars-Sinai and St. Clare's. [FN2] Those cases do not support the position of the majority. Those cases hold only that it is permissible for the Board to treat illegal aliens and paid union organizers as employees. They do not require that these employees be included in bargaining units. Similarly, it may be permissible for the Board to treat house staff as employees. But surely the Board is not compelled to take the position that they are entitled to be in bargaining units. Rather, in all these cases, the Board makes a policy choice to include or exclude the group at issue. This is precisely what the Board did in Cedars-Sinai and St. Clare's. The Board there exercised its discretion by holding that "collective bargaining should not be applied to what is fundamentally an educational relationship." [FN3]
*169 The majority goes to some length to establish that house staff fall within the statutory definition of employee. They thereby miss my essential point. I am not necessarily suggesting that house staff cannot fall within the statutory definition. Rather, I conclude that, as a policy matter, the Board should continue to exercise its discretion to exclude them for purposes of collective bargaining.
No case has held that the Act compels a conclusion that house staff are employees for purposes of collective bargaining. Nor does the language of Section 2(3) compel that result. That section provides that "the term 'employee' shall include any employee." Thus, the Act defines the word "employee" by reference to the word itself. This is hardly a statutory command that house staff must be regarded as employees for bargaining purposes. [FN4]
Second, I note that all courts considering the matter have upheld the Board's discretion to exclude house staff from the status of employees who are entitled to the collective-bargaining provisions of the Act. [FN5]
Further, I note that, in 1979, Congress was presented with a bill that would have specifically overruled Cedars-Sinai/St. Clare's, and would have required the Board to treat house staff as unit employees. The proposed legislation was rejected.
**29 With respect to the legislative history of the 1974 healthcare amendments, the majority notes that Congress rejected a bill that would have excluded house staff from the ambit of supervisory status under Section 2(11) of the Act. They argue that this legislative action demonstrates that house staff are statutory employees. The argument has no merit. The legislative proposal was based on a concern that house staff would be supervisors, and the proponents of the proposal wished to avoid that result. The rejection of the proposal was based on a desire to leave things as they were. Thus, if a house officer is a supervisor under Section 2(11), he would remain a supervisor (because the proposal was rejected). But, if the house officer is not a supervisor under Section 2(11), it does not follow that he is made into an employee by reason of the rejection of the proposal. The proposal and its rejection dealt only with the issue of whether these persons are Section 2(11) supervisors. The debate did not focus at all on the issue of whether house staff are employees within the meaning of Section 2(3). Thus, that legislative history does not support the proposition that house staff must be treated as employees. Indeed, I think it ironic that the majority is quick to draw an inference from this rejection of a legislative bill, but seeks to reject the much clearer inference to be drawn from the rejection of the 1979 bill that would have specifically endorsed the proposition that house staff are Section 2(3) employees. [FN6]
The majority observes that no problems have developed in the public sector where house staff are involved in collective bargaining. I would remind them that these governmental employees do not have the right to strike. The majority would now thrust house staff into the NLRA sector where there is a right to strike. In these circumstances, it surely does not follow that the absence of strikes in the public sector will translate to an absence of strikes under the NLRA.
The Board decision in Cedars-Sinai spoke correctly about the danger of imposing collective bargaining on academic issues. The majority responds by suggesting that the parties will voluntarily forego bargaining with respect to academic issues. I concede that it will likely be the case that the employer will agree to this, but I am far from certain that the union will voluntarily forego bargaining in this area. In apparent recognition of this, the majority goes on to suggest that, in this situation, the Board will resolve whether a union proposal is a mandatory subject of bargaining. However, it may be years before the Board and courts resolve the issue, and the parties will be in the dark for this prolonged period. Surely, this is not a recipe for stability.
Although the Board has the power to change longstanding precedent, that change should be grounded in experience. An agency can change its rules and policies if there are "change[d] circumstances." [FN7] But, there is no record evidence herein of "change[d] circumstances." More particularly, there is no record evidence that the essentially educational nature of the house staff experience has changed to any appreciable degree in the past 20 years. Indeed, the Regional Dir